Stipulation and Agreement of Settlement

Transcription

Case 2:06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 10 of 78 Page ID
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STIPULATION AND AGREEMENT OF SETTLEMENT
This Stipulation and Agreement of Settlement is entered into by and between GARY J.
DAVIS and GENE CASTILLO, individually and as putative representatives of the Settlement Class
(defined in Section 3.2 below), on the one hand, and Chase Bank USA,N.A., on the other hand,
subject to preliminary and final approval by the District Court, by and through their respective
counsel.l
I.
RECITALS
This Agreement is made with reference to and in contemplation ofthe following facts and
circumstances.
1.1.
The Pending Action.
In the Lawsuit, Plaintiffs allege that Chase improperly allocated payments or credits to
regular purchase balances on Circuit City Rewards Credit Cards after promotional or deferred
interest balances and that, as a result, cardholders paid excessive finance charges. The claims
presented include: (1) breach of contract;(2) breach ofthe implied covenant of good faith and fair
dealing;(3) violation of California Civil Code Section 1750 et seq•; and (4) violation of California
Business and Professions Code Section 17200 et seq• Plaintiffs seek compensatory and punitive
damages, injunctive relief, restitution and/or disgorgement, prejudgment and postjudgment
interest, and attorneys' fees and costs on behalf ofthemselves and a putative class.
1.2.
Chase's Denial Of Liability.
Chase vigorously denies all claims asserted in the Lawsuit, denies all allegations of
wrongdoing and liability and contends that its pending motion to dismiss is well-taken and, if
decided, would result in dismissal ofthe Lawsuit. Chase further maintains that Plaintiffs' motion to
intervene or add a new named plaintiff is without merit and would be denied. Chase nevertheless
I Section II below contains the definitions of capitalized terms utilized herein unless otherwise
noted.
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desires to settle all claims that are asserted, or which could have been asserted, on the terms and
conditions set forth herein, solely for the purpose of avoiding the burden, expense and uncertainty
of continuing litigation and for the purpose of putting to rest the controversies that engendered the
Lawsuit. Nothing in this Agreement or any other document may be construed as an admission or
evidence of any violation of any federal or state statute, rule or regulation, or principle of common
law or equity, or of any liability or wrongdoing whatsoever, or ofthe truth of any ofthe claims
asserted or to be asserted in the Lawsuit, or of the infirmity of any defenses that have been raised or
could have been raised by Chase. Further, Chase is not estopped from challenging allegations.in the
Lawsuit in further proceedings in this or any other action ifthe Settlement is not finally approved.
13.
Settlement Through Mediation.
Plaintiffs' Counsel and counsel for Chase engaged in extensive, good faith arm's-length
negotiations, including by participating.in formal mediation sessions on June 18, 2009, November
16, 2011 and October 22, 2013. The Parties' negotiations at the October 22, 2013 mediation
resulted in an agreement on the principal terms of a settlement. All prior agreements and
understandings are now superseded and replaced by this Agreement. It is the Parties' desire and
intention by entering into this Agreement to effect a full, complete and final settlement and
resolution of all existing disputes and claims that relate to or arise out ofthe facts and claims
alleged or which could have been alleged in the Lawsuit.
1.4.
Plaintiffs' Counsel's Investi ag tion.
After multiple depositions, numerous sets of interrogatories, requests for admissions,
extensive document productions and post-mediation confirmatory discovery, Plaintiffs' Counsel
have concluded that a settlement with Chase, on the terms set forth herein, is fair, reasonable,
adequate and in the best interests ofthe Settlement Class based upon their investigation, and taking
into account the sharply contested issues involved, Chase's arguments that problems of proof and
legal defenses may be an impediment to the claims asserted by Plaintiffs, the risks, uncertainty and
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cost offurther prosecution ofthe Lawsuit, and the substantial benefits to be received pursuant to
this Agreement.
NOW,THEREFORE,in consideration ofthe promises and agreements set forth herein, it is
hereby STIPULATED AND AGREED,subject to the District Court's approval as required by
Federal Rule of Civil Procedure 23, that each and every Claim, as described in Section 2.10 below,
will be fully and finally settled and compromised and dismissed with prejudice, and will be fully
discharged and released, upon and subject to the following terms and conditions:
II.
2.1.
DEFINITIONS
"Agreement" or "Settlement" means this Stipulation and Agreement of Settlement,
including all exhibits hereto.
2.2.
"Amended Complaint" means the Proposed Second Amended Class Action
Complaint filed in the District Court on February 1, 2013 at Docket Entry 293-2.
2.3.
"APR" means Annual Percentage Rate.
2.4.
"CAFA Notice" means such notice as may be required pursuant to the Class Action
Fairness Act of 2005.
2.5.
"Chase" means Chase Bank USA,N.A., in its own capacity and as successor by
merger to Bank One, Delaware, N.A.
2.6.
"Circuit City" means Circuit City Stores, Inc.
2.7.
"Circuit City Bankruptcy" means Case No.08-35653 in the United States
Bankruptcy Court for the Eastern District of Virginia.
2.8.
"Circuit City Rewards Credit Card" means the credit card issued by Chase and co-
branded with Circuit City, which has been the subject ofthe Litigation.
2.9.
"Circuit City Rewards Credit Cardmember" and "Circuit City Rewards Credit
Cardholder" mean the obligor, payor or authorized user on a Circuit City Rewards Credit Card.
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2.10. "Claim" and "Claims" mean any and all actual or potential claims, actions, causes of
action, suits, counterclaims, cross claims, third party claims, contentions, allegations, and assertions
of wrongdoing, and any demands for any and all debts, obligations, liabilities, damages(whether
actual, compensatory, treble, punitive, exemplary, statutory or otherwise), attorneys' fees, costs,
expenses, restitution, disgorgement, injunctive relief, any other type of equitable, legal or statutory
relief, any other benefits, or any penalties of any type whatsoever, whether known or unknown,
suspected or unsuspected, contingent or non-contingent, or discovered or undiscovered, whether
asserted in federal court, state court, arbitration or otherwise, and whether triable before a judge or
jury or otherwise, including, without limitation, those that were alleged, or that could have been
alleged based on the same or similar facts and circumstances, in the Lawsuit.
2.1 1.
"Direct Pay Settlement Class Member" means a Settlement Class Member who is
not a Returned Mail Settlement Class Member.
2.12.
"District Court" means the United.States District Court, Central District of
California.
2.13. "Effective Date" means five (5) business days after the Judgment has become Final.
2.14. "Final" means the date the Judgment becomes final for all purposes because either
(i) no appeal has been filed and the time within which an appeal may be filed has expired, or (ii) if a
timely appeal has been filed, the appeal is finally resolved, with no possibility offurther appellate or
other review, resulting in final judicial approval ofthe Settlement.
2.15.
"Final Approval Order" means the order to be entered by the District Court in the
Lawsuit finally approving this Settlement and resolving all issues between the Parties, as provided
for in Section 9.1 below, substantially in the form attached hereto as Exhibit B.
2.16. "Final Fairness Hearing" means the hearing at which the District Court will consider
and finally decide whether to approve the Settlement provided for in this Agreement, enter
Judgment and make such rulings as are contemplated by this Agreement.
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2.17. "First Direct Payment" means the payments described in Sections 4.5 through 4.6
below, and "Second Direct Payment" means the payments described in Sections 4.7 through 4.8
below.
2.18. "Judgment" means a final judgment and order of dismissal with prejudice to be
entered by the District Court concurrently with the Final Approval Order, substantially in the form
attached hereto as Exhibit E.
2.19. "Last Direct Payment" means the Second Direct Payment, or if no Second Direct
Payment is made, then the First Direct Payment.
2.20. "Lawsuit" means the putative class action entitled Davis v. Chase Bank USA,N.A.,
United States District Court, Central District of California, Case No. 2:06-CV-04804-DDP-PJW.
2.21.
"Long-Form Notice" means the notice informing Settlement Class Members oftheir
rights under this Agreement, substantially in the form attached hereto as Exhibit D.
2.22. "Lost Check Settlement Class Member" means a Direct Pay Settlement Class
Members whose First Direct Payment or Second Direct Payment was lost, stolen or otherwise
destroyed.
2.23. "Mediator" means the Honorable Edward A. Infante (Ret.), or if he becomes unable
or unwilling to serve, such other person as may be mutually acceptable to Plaintiffs' Counsel and
counsel for Chase, but in the absence of mutual agreement as to a substitute, such United States
Magistrate Judge as may be appointed by the District Court to perform the function of"Mediator"
solely for purposes of Section 11.2 below.
2.24. "NCOA" means the United States Postal Service National Change of Address
system.
2.25. "Net Settlement Fund" means the Settlement Fund plus interest accrued thereon
subsequent to deposit, and less the following:
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a.
All costs and fees incurred by the Settlement Administrator, including,
without limitation, all costs of Class Notice, CAFA Notice and claims
administration, except those amounts associated with a Second Direct
Payment, if any;
2.26.
b.
All taxes and tax expenses as identified in Section 4.12;
c.
Any District Court-approved attorneys' fees, costs and expenses; and
d.
Any District Court-approved service awards to Plaintiffs.
"Notice" means the method of notice set forth in Section 7.2 below.
2.27. "Parties" means Chase and Plaintiffs.
2.28.. "Plaintiffs" means Gary J. Davis and Gene Castillo, individually and as putative
representatives ofthe Settlement Class.
2.29. "Plaintiffs' Counsel" and "Class Counsel" mean Westerman Law Corp.,
Roxborough, Pomerance, Nye & Adreani, LLP and Milberg LLP.
230. "Postcard Notice" means the form of notice described in Section 7.2 below and
substantially in the form attached hereto as Exhibit C.
231. "Preliminary Approval Order" means an order to be entered by the District Court in
the Lawsuit, as provided for in Section 8.1 below, substantially in the form attached hereto as
Exhibit A.
2.32. "Released Claims" means the Claims released by this Agreement as set forth in
Section 6.1 and 6.2 below.
233. "Released Parties" means Chase, together with its predecessors, successors
(including, without limitation, acquirers of all or substantially all of its assets, stock or other
ownership interests) and assigns; the past, present, and future, direct and indirect, parents (including
but not limited to holding companies and JPMorgan Chase & Co.), subsidiaries and affiliates of any
ofthe above; and the past, present and future principals, trustees, partners, claims administrators
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(including, without limitation, the Settlement Administrator), officers, directors, employees, agents,
attorneys, shareholders, advisors, predecessors, successors, assigns, representatives, heirs,
executors, and administrators of any ofthe above.
234. "Remaining Residual Funds" means the amount remaining in the Settlement Fund, if
any, ninety(90)days after the mailing ofthe Last Direct Payment.
2.35. "Residual Funds" means the amount remaining in the Settlement Fund ninety(90)
days after the First Direct Payment is mailed, if any, less the expected administration costs of a
Second Direct Payment.
2.36. "Returned Mail Settlement Class Member" means a Settlement Class Member whose
Postcard Notice was returned to the Settlement Administrator as undeliverable and for whom the
Settlement Administrator was unable to determine a valid address prior to calculating the First
Direct Payment.
237. "Second Direct Pay Settlement Class Member" means a Settlement Class Member
who negotiated his or her First Direct Payment within ninety(90) days of its mailing, or a
Settlement Class Member who filed a Valid Claim with the Settlement Administrator pursuant to
Section 4.10 below within ninety(90) days ofthe mailing ofthe First Direct Payment.
238. "Settlement Administrator" means Gilardi & Co. LLC,the third party administrator
agreed to by the Parties to administer the Settlement as set forth in this Agreement, or such other
administrator as may be agreed to by the Parties or ordered by the Court.
2.39. "Settlement Class" and "Settlement Class Member" mean, include and refer to
Plaintiffs and all other persons and/or entities that fall within the definition ofthe Settlement Class,
certified solely for purposes ofthe Settlement, as described in Section 3.2 below.
2.40. "Settlement Fund" means the amount described in Section 4.1 below.
2.41. "Settlement Website" means the website that the Settlement Administrator will
establish pursuant to Section 73 below.
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2.42.
"Valid Claim" means a written claim presented to the Settlement Administrator by a
Returned Mail Settlement Class Member or a Lost Check Settlement Class Member consisting of:
(i) his or her name, address and telephone number;(ii) the last four digits of his or her Circuit City
Rewards Credit Card account number(s); and (iii) a sentence certifying that he or she is a Settlement
Class Member who has lost, had stolen, otherwise had destroyed or did not receive a First Direct
Payment and/or a Second Direct Payment.
III.
3.1.
THE SETTLEMENT CLASS
Certification Of Settlement Class For Settlement Purposes Only. Chase disputes that
the elements of Federal Rule of Civil Procedure 23 are satisfied for purposes of a litigation class,
disputes that a litigation class would be manageable and denies that any litigation class may be
certified in the Lawsuit. However, solely for purposes of avoiding the expense and inconvenience
offurther litigation, Chase does not oppose certification for settlement purposes only ofthe
Settlement Class. The Parties further agree that solely for purposes of certifying a settlement class,
both Gary Davis and Gene Castillo are adequate class representatives; Chase agrees that for
settlement purposes only, it will stipulate to Davis and Castillo serving as the class representatives,
but in the event that the Settlement does not become Final for any reason, and the Parties return to
litigating this case, Chase reserves all of its defenses and arguments against Davis and Castillo
serving as class representatives. No agreements made by Chase in connection with the Settlement
may be used by Plaintiffs, any Settlement Class Member, or any other person, to establish any of
the elements of class certification, other than for settlement purposes. Preliminary certification of a
Settlement Class will not be deemed a concession that certification of a litigation class is
appropriate, nor is Chase estopped from challenging class certification in further proceedings in the
Lawsuit or in any other action, ifthe Settlement is not finally approved.
3.2.
Definition OfThe Settlement Class. Solely for purposes ofthis Settlement, the
Parties agree to certification ofthe following Settlement Class:
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All Chase Circuit City Rewards Credit Cardmembers with California
billing addresses who, between May 26, 2004 and the entry of
preliminary approval of this Settlement (inclusive), made a
promotional or deferred-interest purchase at Circuit City and who, as
a result of payments or credits being allocated to a regular purchase
balance after the promotional or deferred-interest balance, paid more
in finance charges than they would have paid if the payments or
credits had first been applied to the regular purchase balance.
The Settlement Class will be certified pursuant to Federal Rule of Civil Procedure 23(b)(3), and all
Settlement Class Members will have the right to exclude themselves by way of an opt-out procedure
set forth in the Preliminary Approval Order.
IV.
4.1.
THE SETTLEMENT FUND
The Settlement Fund. In full and complete settlement ofthe Lawsuit as set forth
herein, Chase will pay Five Million Five Hundred Thousand Dollars ($5,500,000)for the benefit of
the Settlement Class.
4.2.
Timin~ofPayments to Settlement Fund. Chase will provide payments to the
Settlement Fund as follows:
a.
Within fifteen (15) days following entry ofthe Preliminary Approval Order,
Chase will cause the sum of Two Hundred Thousand Dollars($200,000)to
be deposited into the Settlement Fund, which sum reflects the parties'
reasonable estimate ofthe costs ofNotice to the Settlement Class and for the
related services ofthe Settlement Administrator prior to the Effective Date.
b.
Within fifteen (15) days ofthe Final Approval Order, Chase will cause all
other sums due pursuant to this Agreement to be deposited into the
Settlement Fund.
4.3.
Credit For Advances On Behalf OfThe Settlement Fund. Payments of any notice or
administration costs or expenses advanced by Chase, before or after the Settlement Fund is created,
are to be treated as contributions to the Settlement Fund as set forth above in Section 4.1 and will be
credited in their entirety(100%)towards Chase's obligations thereunder.
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4.4.
Distribution Of The Settlement Fund. The Settlement Fund, together with any
interest accrued thereon subsequent to deposit, is to be distributed as follows:
First, to pay the costs of Notice and the costs of Settlement Administration,
except those amounts associated with a Second Direct Payment, ifany;
b.
Second, within fifteen (15)days after the Effective Date, to pay Class
Counsel's attorneys' fees and cost and service awards to Plaintiffs in the
amounts approved by the Court, pursuant to Section 5.1 below;
c.
Third, but not earlier than thirty(30) days after the Effective Date, to make
payments to Settlement Class Members as set forth in Sections 4.5 through
4.10 below and the Settlement Administrator for costs associated with a
Second Direct Payment, if any;
d.
Fourth, if any amount remains after payments pursuant to Sections 4.4(a)
through (c) above, to contribute to such charitable organization as the Parties
may hereafter agree, or if they cannot agree, as the District Court may order.
4.5.
Calculation OfFirst DirectPam. To determine the amount of each First Direct
Payment,the Settlement Administrator will divide the Net Settlement Fund by the number of
accounts held by Direct Pay Settlement Class Members.
4.6.
First Direct Payment To Direct Pav Settlement Class Members. The First Direct
Payment will be mailed by the Settlement Administrator within forty-five (45) days ofthe Effective
Date in the amount determined under Section 4.5.
4.7.
Calculation Of Second Direct Patents. To determine the amount of each Second
Direct Payment, if any, the Settlement Administrator will divide the Residual Funds by the number
of accounts held by Second Direct Pay Settlement Class Members.
4.8.
Second Direct Payment To Direct Pay Settlement Class Members. If sufficient
Residual Funds remain one hundred and eighty(180) days after mailing ofthe First Direct Payment
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so that each Second Direct Pay Settlement Class Member would receive a payment of at least three
dollars ($3.00)from the Residual Fund pursuant to Section 4.7, a Second Direct Payment will be
made by the Settlement Administrator by mailing checks in the amount determined under Section
4.7.
4.9.
Returned Checks. If any First Direct Payments and/or Second Direct Payments are
returned to the Settlement Administrator within ninety (90)days oftheir respective mailings, the
Settlement Administrator will make a reasonable effort to determine an updated mailing address for
each returned check. For each check that an updated address is found for, the Settlement
Administrator will forward the check to that address, but if updated information is not available, the
Settlement Administrator will destroy the check.
4.10. Payment To Returned Mail Settlement Class Members And Lost Check Settlement
Class Members. Returned Mail Settlement Class Members and Lost Check Settlement Class
Members who submit Valid Claims to the Settlement Administrator within ninety(90) days ofthe
mailing ofthe Last Direct Payment will receive payment from the Remaining Residual Funds, if
sufficient funds exist, in the amount they would have been entitled to receive in either a First Direct
Payment or Second Direct Payment or both. If insufficient funds remain to pay all Valid Claims,
Valid Claims will be paid in the order received by the Settlement Administrator until .there are
insufficient Remaining Residual Funds to make payments. Whether a claim is a Valid Claim will
be determined in the sole discretion ofthe Settlement Administrator. Payments made pursuant to
Section 4.10 will be made no sooner than ninety(90) days after the mailing ofthe Last Direct
Payment and no later than one hundred ninety(190) days after the mailing ofthe Last Direct
Payment.
4.11. Time To Negotiate Payments. Settlement Class Members must negotiate any
payments made under this Agreement within one hundred eighty(180) days after the date appearing
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on the check. There will be no further obligation to pay Settlement Class Members who fail to
comply, except as established in Section 4.10 above.
4.12. Interest. Fifty percent(50%)of any interest accrued on the Settlement Fund prior to
the Effective Date will be remitted to Chase. Ifthe Effective Date does not occur, one hundred
percent(100%)ofthe interest will be returned to Chase.
4.13. Settlement Fund Tax Status. The Settlement Fund will be treated at all times as a
"Qualified Settlement Fund" within the meaning of Treasury Regulation §1.468B-1. Class Counsel
and, as required by law, Chase, will jointly and timely make such elections as necessary or
advisable to fulfill the requirements of such Treasury Regulation. For purposes of §468B ofthe
Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, the
"administrator" ofthe Settlement Fund will be the Settlement Administrator. The Settlement
Administrator will timely and properly prepare, deliver to all necessary parties for signature, and
file all necessary documentation for any elections required under Treas. Reg. §1.468B-1. The
Settlement Administrator will timely and properly prepare and file any information and other tax
returns necessary or advisable with respect to the Settlement Fund and the distributions and
payments therefrom including without limitation the returns described in Treas. Reg. §1.468B-2(k),
and to the extent applicable Treas. Reg. §1.468B-2(1).
V.
ATTORNEYS'FEES AND COSTS AND SERVICE AWARDS TO PLAINTIFFS
5.1.
Subject to court approval, Class Counsel intend to seek not more than One Million
Five Hundred Thousand Dollars ($1,500,000) in attorneys' fees and costs, and service awards of not
more than Five Thousand Dollars ($5,000)for each ofthe two Plaintiffs. These amounts will be
paid solely from the Settlement Fund. Chase will not oppose Class Counsel's request for attorneys'
fees, costs and service awards in the foregoing amounts. The service awards will be in addition to
Plaintiffs' entitlement to be paid from the Settlement Fund as set forth in Sections 4.5 through 4.10.
Failure by the Court to approve the amount of attorneys' fees, costs or service awards sought by
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Class Counsel will not be grounds for Plaintiffs to withdraw from the Settlement, will not delay the
Settlement becoming Final as set forth in Section 2.14 above, and will not delay the Effective Date
ofthe releases described in Section 6.1 and 6.2 below. PLAINTIFFS RECOGNIZE AND
UNDERSTAND THAT THE COURT MAY NOT APPROVE ANY SERVICE AWARD TO
THEM WHATSOEVER AND THAT THEIR SUPPORT OF THE SETTLEMENT IS IN NO
WAY CONTINGENT ON ANY SERVICE AWARD. PLAINTIFFS REPRESENT AND
WARRANT THAT NO PROMISES OF ANY KIND HAVE BEEN MADE TO THEM WITH
RESPECT TO ANY SERVICE AWARD OR OTHERWISE.
VI.
6.1.
RELEASE AND DISMISSAL
Release. As ofthe Effective Date, Plaintiffs and each Settlement Class Member,
their respective heirs, executors, administrators, representatives, agents, attorneys, partners,
successors, predecessors-in-interest, assigns and all persons acting for or on their behalf, will be
deemed to have fully, finally and forever released the Released Parties from all Claims, as described
in Section 2.10 above. Without limiting the foregoing, the Claims released pursuant to this
Settlement specifically extend to Claims that Settlement Class Members do not know or suspect to
exist in their favor as of or prior to the Effective Date.
6.2.
The Parties, and all Settlement Class Members, agree that Section 6.1 constitutes a
waiver of Section 1542 ofthe California Civil Code and any similar or comparable provisions,
rights and benefits conferred by the law of any state or territory of the United States or any
jurisdiction, and any principle ofcommon law. Section 1542 ofthe California Civil Code provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
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Plaintiffs and each Settlement Class Member understand and acknowledge the significance of these
waivers of California Civil Code Section 1542 and/or of any other applicable law relating to
limitations on releases. In connection with such waivers and relinquishment, Plaintiffs and each
Settlement Class Member acknowledge that they are aware that they may hereafter discover facts in
addition to, or different from, those facts which they now know or believe to be true with respect to
the subject matter ofthe Settlement, but that they release fully, finally and forever all Claims, and in
furtherance ofsuch intention, the release will remain in effect notwithstanding the discovery or
existence of any such additional or different facts. The Parties acknowledge (and all Settlement
Class Members by operation of law will be deemed to have acknowledged)that the release of
unknown Claims as set forth herein was separately bargained for and was a key element of the
Settlement.
6.3.
Dismissal. Upon entry ofthe Final Approval Order, Plaintiffs will take all actions
necessary to dismiss the Lawsuit with prejudice.
6.4.
No Other Actions. Plaintiffs represent and warrant that they have no other actions
currently pending or planned against Chase arising from or involving the same or similar facts or
allegations that are alleged in the Lawsuit.
6.5.
Obligations Of Settlement Class Members Unaffected By Settlement. The
Settlement and this Agreement will not affect debts owed by Plaintiffs or Settlement Class
Members to Chase, and Plaintiffs and all Settlement Class Members will remain fully obligated on
any and all such debts.
6.6.
Circuit City Bankruptcy Proceeding. Chase has outstanding claims in the Circuit
City Bankruptcy. Among the outstanding claims is bankruptcy claim No. 7065, which seeks
defense and indemnification of Chase by Circuit City for the Lawsuit and the Claims settled herein.
Any amounts which Chase may recover in the Circuit City Bankruptcy, through settlement or
otherwise, will belong solely to Chase, and Plaintiffs and Settlement Class Members will not seek,
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through litigation. or otherwise, to claim any recovery or portion thereof. Nothing in this Agreement
constitutes or will be deemed a waiver of any of Chase's rights in the Circuit City Bankruptcy,
including, without limitation, with respect to bankruptcy claim No. 7065.
6.7.
No Malicious Prosecution Claim. Chase agrees to fully release Plaintiffs, any
member ofthe Settlement Class, and Plaintiffs' Counsel for any claims Chase may have for
malicious prosecution, abuse of process, or any other claim based on the filing, prosecuting and/or
maintaining ofthe Lawsuit or any papers contained in the Lawsuit, and Chase agrees that it will not
commence any lawsuit against Plaintiffs, any member ofthe Class, or Plaintiffs' Counsel
contending that this lawsuit should not have been filed, prosecuted and/or maintained.
VII.
7.1.
NOTICE AND SETTLEMENT ADMINISTRATION
Costs OfNotice And Administration. The costs of notice and administration will be
paid or deducted from the Settlement Fund as described in Section 4.4 above. Class Counsel and
Chase must approve the costs for notice and administration before any costs are incurred.
7.2.
Class Notice. Notice to the Settlement Class will be mailed within sixty(60) days
following entry ofthe Preliminary Approval Order, as follows:
a.
Postcard Notice, substantially in the form attached hereto as Exhibit C and
subject to approval by the District Court, will be mailed to all Settlement
Class Members, at the most recent address shown in Chase's reasonably
accessible electronic records, as maintained in the ordinary course of
business, for the account at issue. Addresses will be run once through the
NCOA system before mailing.
b.
The Postcard Notice will direct all Settlement Class Members to the
Settlement Website.
c.
If prior to the Final Fairness Hearin, Postcard Notices are returned to the
Settlement Administrator with a forwarding address, the Settlement
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Administrator will re-send a Postcard Notice to the Settlement Class Member
at that forwarding address. IfPostcard Notices are returned to the Settlement
Administrator as undeliverable, the Settlement Administrator will make a
reasonable effort to determine a valid address for the Settlement Class
Member, and, if an address is found, then the Settlement Administrator will
re-send a Postcard Notice to the Settlement Class Member at that address.
7.3.
Settlement Website. The Settlement Administrator will establish, prior to the
mailing ofthe Postcard Notice, the Settlement Website. The Settlement Website will include the
Long-Form Notice, substantially in the form attached hereto as Exhibit D and subject to approval by
the District Court, this Agreement, contact information for the Settlement Administrator, contact
information for Class Counsel, and any other material the Parties agree in writing to include. The
Settlement Website URL will be determined by the mutual agreement ofthe Class Counsel and
Chase or, if no agreement can be reached, by the Mediator. The Settlement Website will not
include any advertising, and will not bear or include the Chase logo or trademarks. Ownership of
the Settlement Website URL will be transferred to Chase within ten (10) days ofthe date on which
operation ofthe Settlement Website ceases.
7.4.
CAFA Notice. All relevant approval and court filing dates will be scheduled to
ensure adequate time for compliance with the Class Action Fairness Act. Plaintiffs will cooperate
reasonably with Chase to ensure compliance so that the releases described in Section 6.1 and 6.2
above are fully enforceable.
VIII. PRELIMINARY APPROVAL
8.1.
Preliminary Approval Order. Plaintiffs will seek the District Court's approval of the
Settlement by filing an appropriate Motion for Preliminary Approval and seeking entry of a
Preliminary Approval Order substantially in the form attached hereto as Exhibit A. The Parties will
cooperate in presenting such papers to the District Court as may be necessary to effectuate the intent
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and purposes of this Agreement. Among other things, the proposed Preliminary Approval Order
will specifically include the following:
a.
A determination that, for settlement purposes only, the Lawsuit may be
maintained as a class action on behalf ofthe Settlement Class;
b.
A finding that the Notice as described in Section 7.2 above is the only notice
to the Settlement Class that is required, and that such Notice satisfies the
requirements of Due Process, the Federal Rules of Civil Procedure and any
other applicable laws;
c.
A preliminary finding that this Agreement is fair, reasonable, adequate and
within the range of possible approval;
d.
A preliminary finding that Plaintiffs fairly and adequately represent the
interests ofthe Settlement Class;
e.
A preliminary appointment of Class Counsel finding that Class Counsel are
adequate to act as counsel for the Settlement Class;
f.
A scheduled date for the Final Fairness Hearing, which the Parties will
request be approximately one hundred and thirty-five (135) days after entry
ofthe Preliminary Approval Order, to determine whether there exists any
reasonable basis why the Settlement should not be approved as being fair,
reasonable and adequate, in the best interests of the Settlement Class, and
why Judgment should not be entered thereon;
g.
Establishment of a procedure for Settlement Class Members to opt-out ofthe
proposed Settlement and setting a postmark deadline of one hundred and five
(105)days following entry ofthe Preliminary Approval Order, after which no
Settlement Class Member will be allowed to opt-out ofthe Settlement Class;
Page 17 of29
LA 51693093v16
#:7259
h.
Establishment of a procedure for Settlement Class Members to object to the
proposed Settlement and setting a postmark deadline of one hundred and five
(105) days following entry ofthe Preliminary Approval Order, after which no
Settlement Class Member will be allowed to object to the proposed
Settlement;
i.
Entry of a preliminary injunction as to Plaintiffs, all Settlement Class
Members and any person or entity allegedly acting on behalf of Settlement
Class Members, whether directly, representatively or in any other capacity,
enjoining them from commencing or prosecuting against the Released
Parties, any action or proceeding in any court or tribunal asserting any ofthe
Released Claims; and
j.
Entry of a stay of all proceedings in the Lawsuit except as may be necessary
to implement the Settlement or comply with the terms ofthis Agreement.
8.2.
Stay Following Preliminar~pproval Order. Upon entry ofthe Preliminary
Approval Order, the Parties will promptly cooperate in filing such papers as may be necessary to
obtain a stay ofthe proceedings in the Lawsuit and any other similar action, except as may be
necessary to implement the Settlement or comply with the terms ofthis Agreement.
8.3.
Denial OfPreliminary A~roval Order. Ifthe District Court fails for any reason to
enter the Preliminary Approval Order substantially in the form attached hereto as Exhibit A,or to
certify the Settlement Class for settlement purposes consistent with the provisions hereof, and if the
Parties do not agree jointly to either address the reasons given by the District Court and seek further
approval again, or to appeal such a ruling, then this Agreement will terminate and be of no further
force or effect without any further action by the Parties. In such an event, nothing in this
Agreement or filed in connection with seeking entry ofthe Preliminary Approval Order may be
Page 18 of29
LA 51693093v16
#:7260
used or construed as an admission or concession by any ofthe Parties in the Lawsuit, nor is any
Party estopped from challenging any allegations in further proceedings in the Lawsuit.
8.4.
Opt-Out/Requests For Exclusion From Settlement.
a.
Requests For Exclusion. Settlement Class Members will be given the
opportunity to opt out ofthe Settlement Class. All requests by Settlement
Class Members to be excluded must be in writing, sent to the Settlement
Administrator and postmarked not later than one hundred and five(105) days
following entry ofthe Preliminary Approval Order. To be valid, a request for
exclusion must be personally signed by the Settlement Class Member and
must include:(i) the Settlement Class Member's name, address and telephone
number;(ii) the last four digits ofthe Settlement Class Member's Circuit City
Rewards Credit Card account number(s);(iii) a sentence certifying that he or
she is a Settlement Class Member; and (iv) the following statement: "I
request to be excluded from the class settlement in Davis v. Chase Bank
USA,N.A.; United States District Court, Central District of California, Case
No. CV-04804-DDP-PJW." No Settlement Class Member, or any person
acting on behalf of or in concert or participation with that Settlement Class
Member, may exclude any other Settlement Class Member from the
Settlement Class.
b.
Delivery To Parties; Certification To The District Court. The Settlement
Administrator will provide copies ofthe original requests for exclusion to the
Parties by no later than ten (10) days after the opt-out deadline. Not later
than ten (10)days before the Final Fairness Hearing, the Settlement
Administrator will file with the District Court a declaration verifying that
Page 19 of29
LA 51693093v16
#:7261
Notice has been provided to the Settlement-Class as set forth in the
Preliminary Approval Order and listing all ofthe valid opt-outs received.
Effect. Settlement Class Members who timely exclude themselves from the
Settlement Class will not be eligible to receive any payment pursuant to the
Settlement, will not be bound by any further orders or judgments in the
Lawsuit, and will preserve their ability to independently pursue any
individual claims for damages they may have against Chase by filing their
own individual lawsuit or arbitration at their own expense. In the event of
ambiguity as to whether a Settlement Class Member has requested to be
excluded (such as through a submission of both a request for exclusion and a
Claim or a request for a Direct Payment, or by negotiating a Direct Payment),
the Settlement Class Member will be deemed not to have requested
exclusion.
d.
Right To Withdraw For Excessive Opt-Outs. If more than one thousand
(1,000) Settlement Class Members request exclusion, then Chase in its sole
discretion may terminate this Agreement, and the Parties will be returned to
the status duo ante as of October 22, 2013, for all litigation purposes, as if no
settlement had been negotiated or entered into, and the provisions of Section
10.1 below will apply, including without limitation with respect to the
Settlement Fund. If Chase exercises this right to declare the Agreement void,
it must provide Plaintiffs' Counsel with written notice ofthis election no later
than ten (10)days before the Final Fairness Hearing.
8.5.
Objections To Settlement.
a.
Right ~'o Object. Any Settlement Class Member who has not requested
exclusion in accordance with the terms of this Agreement, may file an
Page 20 of29
LA 51693093v16
#:7262
objection to the Settlement and appear at the Final Fairness Hearing to argue
that the proposed Settlement should not be approved and/or to oppose the
application of Class Counsel for an award of attorneys' fees and costs and the
service awards to Plaintiffs.
b.
Deadline. Any such objection must be filed with the Clerk ofthe United
States District Court, Central District of California, 312 North Spring Street,
Los Angeles, California 90012, not later than one hundred and five (105)
days following entry ofthe Preliminary Approval Order. Copies of all
objections also must be served electronically via the Court's ECF system or
mailed, postmarked no later than one hundred and five (105)days following
entry ofthe Preliminary Approval Order, to each ofthe following: Class
Counsel, Drew Pomerance, Roxborough, Pomerance, Nye & Adreani, LLP,
5820 Canoga Avenue, Woodland Hills CA 91367-6549; and Counsel for
Chase, Julia B. Strickland and Stephen J. Newman, Stroock & Stroock &
Lavan LLP,2029 Century Park East, 16th Floor, Los Angeles, California
90067.
c.
Content Of Objections. All objections must include:(i)the objector's name,
address and telephone number;(ii) the last four digits ofthe objector's
Circuit City Rewards Credit Card account number(s);(iii) a sentence
certifying he or she is a Settlement Class Member;(iv)the factual basis and
legal grounds for the objection to the Settlement;(v)the identity of witnesses
whom the objector may call to testify at the Final Fairness Hearing;
(vi) copies of exhibits the objector may seek to offer into evidence at the
Final Fairness Hearing;(vii) a sentence certifying that the objector has not
Page 21 of29
LA 51693093v16
#:7263
been promised anything in return for objecting; and (viii) the personal
signature ofthe objector.
IX.
FINAL APPROVAL OF SETTLEMENT AND OTHER CONDITIONS
9.1.
Final Fairness Hearin. On a date to be set by the District Court, Plaintiffs will seek
from the District Court the Final Approval Order and Judgment in the Lawsuit, substantially in the
forms attached hereto as Exhibits B and E. Among other things, the Final Approval Order will
provide:
a.
That the Amended Complaint is filed and that no response to it needs to be
filed;
b.
That the Lawsuit, for purposes ofthe Settlement, may be maintained as a
class action on behalf ofthe Settlement Class;
c.
That Plaintiffs fairly and adequately represent the interests ofthe Settlement
Class;
d.
That Class Counsel adequately represent Plaintiffs and the Settlement Class;
e.
That the Notice satisfied the requirements of Due Process, the Federal Rules
of Civil Procedure and any other applicable laws;
f.
That the Settlement is fair, reasonable and adequate to the Settlement Class
and that each Settlement Class Member will be bound by the Settlement,
including the Releases contained in Section 6.1 above;
g.
That the Settlement represents a fair resolution of all claims asserted on
behalf ofthe Settlement Class and fully and finally resolves all such claims;
h.
That this Agreement should be, and is, approved;
i.
The amount of attorneys' fees and costs and service awards that may be paid
to Class Counsel and Plaintiffs from the Settlement Fund;
j.
That the requests for exclusion from the Settlement are confirmed;
Page 22 of29
LA 51693093v16
#:7264
k.
That all objections are overruled;
1.
That all claims in the Lawsuit and in the Amended Complaint are dismissed,
on the merits and with prejudice, and that each and every Settlement Class
Member(except those who have validly excluded themselves from the
Settlement Class) is permanently enjoined from bringing,joining or
continuing to prosecute against the Released Parties any Released Claims,
and entering Judgment thereon; and
m.
That the District Court retains jurisdiction of all matters relating to the
modification, interpretation, administration, implementation, effectuation and
enforcement ofthis Agreement and the Settlement.
X.
TERMINATION OF AGREEMENT
10.1. Non-Approval Of Agreement. This Agreement is conditioned upon final approval
without material modification by the District Court in the Lawsuit. In the event that the Agreement
is not so approved,the Parties will return to the status duo ante as of October 22, 2013, as if no
Agreement had been negotiated or entered into. Moreover, the Parties will be deemed to have
preserved all of their rights or defenses as of October 22, 2013, and will not be deemed to have
waived any substantive or procedural rights of any kind that they may have as to each other or any
member ofthe proposed Settlement Class. Likewise, in the event that the Agreement is approved
without material modification by the District Court, but is later reversed or vacated on appeal, each
ofthe Parties will have the right to withdraw from the Agreement and return to the status duo ante
as of October 22, 2013, for all litigation purposes, as if no Agreement had been negotiated or
entered into, and will not be deemed to have waived any substantive or procedural rights of any
kind that they may have as to each other or any member ofthe proposed Settlement Class. All
money within the Settlement Fund, including without limitation any accrued interest, at the time of
Page 23 of29
LA 51693093v16
#:7265
non-approval by the District Court(or reversal or vacatur by an appellate court) will be returned to
Chase within fifteen (15) days ofnon-approval(or reversal or vacatur of approval).
XI.
MISCELLANEOUS PROVISIONS
11.1. Further Assurances. Each ofthe Parties will execute all documents and perform all
acts necessary and proper to effectuate the terms ofthis Agreement.
11.2. Dispute Resolution. The Parties agree to meet and confer in good faith in regard to
any dispute relating to the Settlement or to administration ofthe Settlement, including without
limitation disputes regarding eligibility for payments. Any dispute that cannot be resolved by the
Parties will be submitted to the Mediator for a written recommendation. Ifthe Mediator's
recommendation does not resolve the dispute, either Party may seek appropriate relieffrom the
District Court, and in ruling on the dispute the District Court may consider but will not be bound by
the Mediator's recommendation.
113. Publicity And Non-Disparagement. The Parties will refrain from publicly
disparaging each other or taking any action designed to harm the public perception of each other
regarding any issue related to the Settlement or the Lawsuit. The Parties and counsel further agree
not to issue press releases or otherwise initiate communications with the media regarding this
Settlement or the Lawsuit.
11.4. Entire Agreement. This Agreement constitutes the entire agreement between and
among the Parties with respect to settlement ofthe Lawsuit. This Agreement supersedes all prior
negotiations and agreements, including without limitation all offers and communications made
during the course of mediation. THE PARTIES, AND EACH OF THEM,REPRESENT AND
WARRANT THAT NO OTHER PARTY OR ANY AGENT OR ATTORNEY OF ANY OF THE
PARTIES HAS MADE ANY PROMISE,REPRESENTATION OR WARRANTY
WHATSOEVER NOT CONTAINED IN THIS AGREEMENT TO INDUCE THEM TO
EXECUTE THE SAME. THE PARTIES, AND EACH OF THEM,FURTHER REPRESENT
Page 24 of29
LA 51693093v16
#:7266
AND WARRANT THAT THEY HAVE NOT EXECUTED THIS AGREEMENT IN RELIANCE
ON ANY PROMISE,REPRESENTATION OR WARRANTY NOT CONTAINED IN THIS
AGREEMENT.
11.5. Confidentiality. Any and all drafts ofthis Agreement and other settlement
documents relating to the negotiations between the Parties will remain confidential and will not be
disclosed or duplicated except as necessary to obtain preliminary and/or final court approval. This
provision will not prohibit the Parties from submitting this Agreement to the District Court in order
to obtain preliminary and/or final approval ofthe Settlement. It is agreed that, within thirty(30)
days after the Effective Date, the originals and all copies of all confidential or highly confidential
documents and/or information subject to the protective order in the Lawsuit must be destroyed or
returned to the designating Parties.
11.6. Inadmissibility OfDiscovery Provided In Connection With Settlement. If approval
ofthe Settlement is denied, all discovery provided in connection with settlement negotiations,
including without limitation the post-mediation confirmatory discovery, will be subject to Rule 408
ofthe Federal Rules ofEvidence and will not be admissible for any litigation purpose.
11.7. Successors And Assigns. The Agreement is binding upon, and inures to the benefit
of, the heirs, successors and assigns ofthe Parties.
11.8. Competency OfParties. The Parties, and each ofthem, acknowledge, warrant,
represent and agree that in executing and delivering this Agreement, they do so freely, knowingly
and voluntarily, that they had an opportunity to and did discuss its terms and their implications with
legal counsel, that they are fully aware ofthe contents and effect ofthe Agreement and that such
execution and delivery is not the result of any fraud, duress, mistake or undue influence whatsoever.
11.9. Authority. The person signing this Agreement on behalf of Chase warrants and
represents that he or she is authorized to sign on Chase's behalf. Plaintiffs have personally signed
this Agreement.
Page 25 of29
LA 51693093v16
#:7267
11.10. Modification. No modification of or amendment to this Agreement will be valid
unless it is in writing and signed by all Parties hereto.
11.11. Construction. Each ofthe Parties has cooperated in the drafting and preparation of
this Agreement. Hence, in any construction to be made of this Agreement, the same will not be
construed against any ofthe Parties. Before declaring any provision of this Agreement invalid, the
District Court will first attempt to construe the provision valid to the fullest extent possible
consistent with applicable precedent so as to find all provisions of this Agreement valid and
enforceable. After applying this rule of construction and still finding a provision invalid, the
District Court will interpret the invalid provision to the fullest extent possible to otherwise enforce
the invalid provision. The invalidity of any one provision will not render this Agreement otherwise
invalid and unenforceable unless the provision found to be invalid materially affects the terms of
this Agreement after application ofthe rules of construction set forth in this paragraph.
11.12. No Waiver. The failure ofany ofthe Parties to enforce at any time any provision of
this Agreement will not be construed to be a waiver of such provision, or any other provision, nor in
any way to affect the validity ofthis Agreement or any part hereof, or the right of any of the Parties
thereafter to enforce that provision or each and every other provision. No waiver of any breach of
this Agreement will constitute or be deemed a waiver of any other breach.
11.13. Notices/Communications. All requests, demands, claims and other communications
hereunder will: (a) be in writing;(b) be delivered by U.S. Mail and email;(c)be deemed to have
been duly given on the date received; and (d) be addressed to the intended recipient as set forth
below:
If to Plaintiffs or the Settlement Class:
Drew Pomerance, Esq.
Roxborough, Pomerance, Nye & Adreani, LLP
5820 Canoga Avenue
Woodland Hills CA 91367-6549
Email: dep(a~rpnalaw.com
Page 26 of29
LA 51693093v16
#:7268
Jeff Westerman, Esq.
Westerman Law Corp.
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Email: iwesterman(a),'si wle ag l.com
Nicole Duckett Fricke, Esq.
Milberg LLP
300 South Grand Avenue, Suite 3900
Email: ndfricke e,milber~ com
If to Chase:
Julia B. Strickland, Esq.
Stephen J. Newman,Esq.
Stroock & Stroock & Lavan LLP
2029 Century Park East, 16th Floor
Email: [email protected]; [email protected]
Each ofthe Parties may change the address to which requests, demands, claims or other
communications hereunder are to be delivered by giving the other Parties notice in the manner set
forth herein.
11.14. Counting Of Days. Except where stated otherwise, reference to "days" means
calendar days. Ifthe last day upon which an act must or may be done falls on a weekend, holiday or
other non-business day, such act must or may be done on the next subsequent business day.
11.15. Counterparts. This Agreement may be executed in one or more counterparts and, if
so executed, the various counterparts constitute one instrument for all purposes and will be binding
on each ofthe Parties that executed it, provided, however, that none ofthe Parties will be bound
unless and until all Parties have executed this Agreement. For convenience, the several signature
pages may be collected and annexed to one or more documents to form a complete counterpart.
Photocopies of executed copies ofthis Agreement may be treated as originals.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
Page 27 of29
LA 51693093v16
#:7269
A reed and accepted:
Dated: April,"_, 2014
Gard J. Davis
Dated: April ~,2014
By:
Gene Castillo
Dated: April ~,2014
Chas
By:
ink USA, A.
~cJ~v1
Eileen Serra
`.._.
Approved as to farm and content:
Dated: April _,2014
Westerman Lar~v Corp.
Attorneys for Plaintiffs and the Settlement Class
Dated:.A.pz~i12~ 2014
RpXBOk2.~UGH,POMERA.NC~,I~1YE &
ADREANT,LLT'
By
A.ttor~aeys for Plaintiffs and the Settlement Class
Dated: ~il''~ 20,4
Milbexg LLP
Vnt qa
By
Attorneys for Plaintiffs and.the Settlement Class
Pale 28 of3
~,A 51693093v16
#:7270
Approved as to fozxn:
IJated; Aprils 20 4
STROQCK & STROOCK & LAVAN LLP
'~
By
AttornEys for Chase
gage 30 of30
LA 51693093x16
>~
..,~
Case 2:06-cv-04804-DDR=PJV1/ Document 333-1 Filed 04129714 Page 2 of 2 Page ID
#:7323
~~, r~~d an~i ac;cet~~e~i:
I.~~,ted: April ~,201
~~..
•.w~._...n......_.._..____.____. _.___.~.._,_._~_...._..............._............._._...,.~_.......__..._...
~~t~r J. 3~avi5
3~at~~: A~z'1 Z3,2314
Gene Gash to
Dated. April ~,2t~14
Chi Banff EJSA, N.~>
ley:
g~'c~verl ~;~ tt~.t"c~r~ri.
c~ cernt~nt:
I~at~d: A:pz'1 ~,~{~ 1
~Vcste~nan L,aw Ct~rp.
~y
~,.t~arneys fc+r ~'t~i~tiff~ Inc! tt~e S~tttement Class
~aCeci: A:~rc~ ^,21314
R(3X~t3It~C:ICrH,1't31t~~F~,1~1~IL;~, ~'J~CE 8z
AF.~R~~t~1i, I..LF'
Icy.
Aitarn~ys fear i'l~intiffa
I~~teci: A~'' ~°,2U14
d the ~etticznent Class
~vlilber~ L~,P
c~urc q,
attorneys csr Plaintiffs and tY~e ~ettlemeiai Ctass
r~ s~~~3o~vt;~
#:7271
E~:HIBIT A
LA 5]732215
Case ~:06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 -Page 40 of 78 Page ID
#:7272
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE CENTRAL DISTRICT OF CALIFORNIA
10
GARY DAVIS, an individual, on behalf
of himself, as Private Attorney General,
and on behalf of all others similarly
12 situated,
Case No. CV 06-04804 DDP(PJWx)
11
13 ~ ~
14 I I
Plaintiff,
v.
15
CHASE BANK U.S.A., N.A., a
Delaware corporation; and DOES 1
16 through 50, inclusive,
17
,~
io
Defendants.
19
20
21
22
23
24
25
26
27
28
LA 51732215
Assigned to the Hon. Dean D. Pregerson
[PROPOSED]PRELIMINARY
APPROVAL ORDER
Case ?:06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 41 of 78 Page ID
#:7273
1
WHEREAS, Plaintiffs have made a motion (the "Motion"), pursuant to
2 Federal Rule of Civil Procedure 23, for an order preliminarily approving settlement
3 of the above-captioned action (the "Lawsuit")in accordance with the Stipulation and''
4 Agreement of Settlement filed with this Court on
, 2014 (the "Agreement" or
5 the "Settlement"), and the exhibits attached thereto, entered into by and between
6 Plaintiffs and Chase, setting forth the terms and conditions for a proposed settlement
7 ofthe Lawsuit and its dismissal with prejudice; and
8
WHEREAS,Chase does not oppose Plaintiffs' Motion; and
9
WHEREAS, as a condition of the Agreement, Plaintiffs, on behalf
10 ~ themselves individually and on behalf of each of the Settlement Class Members,
11
have agreed to release all claims arising under federal, state or common law as
12 specified in Sections 6.1 and 6.2 ofthe Agreement; and
13
WHEREAS, this Court having read and considered Plaintiffs' Motion, the
14 Agreement and exhibits attached thereto, as well as all arguments and submissions
15 ~ from the Parties and any intervenors at the noticed hearings; and
16
WHEREAS, all defined terms have the same meaning as set forth in the
17 ~ Agreement.
18
NOW,THEREFORE,IT IS HEREBY ORDERED:
19
1.
For purposes of this Lawsuit, this Court has subject matter jurisdiction
20 and, for purposes ofthe Settlement only, this Court has personal jurisdiction over the
21
22
Parties, including all Settlement Class Members.
2.
For purposes of this Settlement only, this Court preliminarily certifies
23 ~ the following Settlement Glass:
24
All Chase Circuit City Rewards Credit Cardmembers with
California billing addresses who, between May 26, 2004
and the entry of this Preliminary Approyal Order
(inclusive), made a romotional or deferred-interest
purchase at Circuit ~ity and who, as a result of payments or
credits being allocated to a regular purchase balance after
the promotional or deferred-interest balance, paid more in
finance charges than they would have paid if the payments
or credits had first been applied to the regular purchase
balance.
25
26
27
28
-1ILA 51732215
Case :06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 42 of 78 Page ID
#:7274
1
The Settlement Class preliminarily is certified pursuant to Federal Rule of
2 Civil Procedure 23(b)(3), and all Settlement Class Members will have the right to
3 exclude themselves by way ofthe opt-out procedure set forth below in Paragraph 12.
4
3.
This Court preliminarily finds, solely for purposes of the Settlement,
5 that the Lawsuit may be maintained as a class action on behalf of the Settlement
6 Class because: (a)the Settlement Class is so numerous that joinder of all Settlement
7 Class Members in the Lawsuit is impracticable; (b) there are questions of law and
8 fact common to Settlement Class Members that predominate over any individual
9 questions; (c) Plaintiffs' claims are typical of the claims of the Settlement Class;
10 (d)Plaintiffs and Class Counsel have fairly and adequately represented and protected
11
the interests of the Settlement Class; and (e) a class action is superior to other
I!
12 available methods for the fair and efficient adjudication ofthe controversy.
13
4.
This Court preliminarily approves the Agreement as being fair,
14 reasonable and adequate and within the range of possible approval, subject to further
15
16
consideration at the Final Fairness Hearing as set forth below in Paragraph 7.
5.
This Court preliminarily finds that Plaintiffs fairly and adequately
17 represent the interests of the Settlement Class and therefore designates Plaintiffs as
18 the representatives ofthe Settlement Class.
19
6.
Pursuant to Federal Rule of Civil Procedure 23(g), and after
20 consideration of the factors described therein and oral and written arguments, this
21
Court designates as Class Counsel the law firms of Westerman Law Corp.,
22 Roxborough, Pomerance, Nye & Adreani, LLP and Milberg LLP. This Court
23 preliminarily finds that based on the work Class Counsel have done in identifying,
24 investigating and prosecuting the claims in the action, Class Counsel's experience in
25
handling class actions, other complex litigation and claims ofthe type asserted in this
26 Lawsuit, Class Counsel's knowledge of the applicable law and the resources Class
27 Counsel have and will commit to representing the class, Class Counsel have and will
28 fairly and adequately represent the interests of the Settlement Class. Plaintiffs and
-2[PROPOSED]PRELIMINARY APPROVAL ORDER
LA S 1732215
Case ~:06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 43 of 78 Page ID
#:7275
1
Class Counsel, on behalf of the Settlement Class, are authorized to take all
2 appropriate action required or permitted to be taken by the Settlement Class pursuant
3 to the Agreement to effectuate its terms.
4
7.
The Final Fairness Hearing will take place before the Honorable Dean
5 D. Pregerson on
, 2014 [a date on or after one hundred and thirty-five'
6 (135) days following entry of this Order] at
a.m./p.m. at the United States'
7 District Court, Central District of California, Courtroom #3, 312 Spring Street, Los
8 Angeles, California 90012, to determine: whether the proposed Settlement of the
9 Lawsuit on the terms and conditions provided for in the Agreement is fair, adequate
10
and reasonable as to the Settlement Class Members and should be approved; whether
11
the Judgment, as provided for in the Agreement, should be entered; and whether the
12 amount of fees and costs that should be awarded to Class Counsel, and the amount of
13 the service awards that should be awarded to Plaintiffs, as provided for in the
14
Agreement. The Court will also hear and consider any properly lodged objections at
15
that time.
16
8.
This Court approves Gilardi & Co. LLC as the Settlement
17 ~ Administrator. The Settlement Administrator is directed to implement the notice
18
19
program set forth in Sections 7.2 and 7.3 ofthe Agreement.
9.
This civil action was commenced after February 18, 2005. To the extent
20 it has not already done so, the Court directs Chase to notify the appropriate Federal
21
and State officials under the Class Action Fairness Act of 2005, 28 U.S.C. § 1715,
22 and, at or before the Final Fairness Hearing, file proof that such notice has been
23
24
25
given.
10.
This Court finds that notice as set forth in Sections 7.2 and 7.3 of the
Agreement are the only notice required, and that such notice satisfies the
26 requirements of due process, the Federal Rules of Civil Procedure, the Class Action
27 Fairness Act of 2005, 28 U.S.C. § 1715, and any other applicable laws, and
28
constitutes the best notice practicable under the circumstances and will constitute due
-3ILA 51732215
Case C ':06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 44 of 78 Page ID
#:7276
1
and sufficient notice to all persons entitled thereto. This Court approves the form
2
and content ofthe Postcard Notice and Long-form Notice attached as Exhibits C and
3 D to the Agreement.
4
11.
All Settlement Class Members who do not request exclusion("opt-out")
5 from the Settlement Class certified pursuant to Federal Rule of Civil Procedure
6' 23(b)(3), pursuant to the procedure set forth in Paragraph 12 below, will be bound by
7 all determinations and judgments in this. Lawsuit concerning the Settlement,
8 including, but not limited to, the validity, binding nature and effectiveness of the
9 releases set forth in Sections 6.1 and.6.2 ofthe Agreement.
10
11
12.
Any Settlement Class Member who wishes to opt-out of the Settlement
Class will submit to the Settlement Administrator an appropriate written request for'
12 exclusion by mail, postmarked no later than one hundred and five (105) days after
13
entry of this Order. The request for exclusion must be personally signed by the
14
Settlement Class Member, and include: (i) the Settlement Class Member's name,
15
address, telephone number;(ii) the last four digits of the Settlement Class Member's
16
Chase credit card account number(s); (iii) a sentence certifying that he or she is a
17 Settlement Class Member; and (iv) the following statement: "I request to be excluded
18 from the class settlement in Davis v. Chase Bank USA, N.A., United States District
19
Court, Central District of California, Case No. 2:06-CV-04804-DDP-PJW." No
20
Settlement Class Member, or any person acting on behalf of or in concert or
21
participation with a Settlement Class Member, may exclude any other Settlement
22 Class Member from the Settlement Class.
23
24
13.
Any Settlement Class Member, who has not previously opted-out in
accordance with the terms of Paragraph 12 above, may appear at the Final Fairness
25 Hearing to argue that the proposed Settlement should not be approved and/or to
26 oppose the application of Class Counsel for an award of attorneys' fees and costs and
27 the service awards to Plaintiffs; provided, however, that no Settlement Class Member
28
will be heard, and no objection may be considered, unless the Settlement Class
LA 51732215
Case ~ :06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 45 of 78 Page ID
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1
Member files with this Court a written statement ofthe objection postmarked no later ~
2 than one hundred and five (105) days following entry of this Order. Copies of all
3
objection papers also must be served electronically via the Court's ECF system or
4
mailed, postmarked no later than one hundred and five (105) days following entry of
5 this Preliminary Approval Order, to each of the following: Class Counsel, Drew
6 Pomerance, Esq., Roxborough, Pomerance, Nye & Adreani, LLP, 5820 Canoga
7 Avenue, Woodland Hills CA 91367-6549; and counsel for Chase, Julia B. Strickland,
8 Esq. and Stephen J. Newman, Esq., Stroock & Stroock & Lavan LLP, 2029 Century'
9 Park East, 16th Floor, Los Angeles, California 90067. All objections must include:
10 (i) the objector's name, address and telephone number; (ii) the last four digits of the
11
objector's Circuit City Rewards Credit Card account number(s); (iii) a sentence
12 certifying he or she is a Settlement Class Member; (iv) the factual basis and legal
13
grounds for the objection to the Settlement;(v) the identity of witnesses whom the
14
objector may call to testify at the Final Fairness Hearing;(vi) copies of exhibits the
15
objector may seek to offer into evidence at the Final Fairness Hearing; (vii) a
16 sentence certifying that the objector has not been promised anything in return for
17 objecting; and (viii)the personal signature ofthe objector.
18
14.
Class Counsel will submit their papers in support of final approval of
19 the Settlement and their application for attorneys' fees and reimbursement
20 .expenses by no later than twenty (20) days before the objection deadline set by
21
22
23
24
Paragraph 13 above.
15.
Class Counsel will submit their papers in response to any objections by
no later than seven(7) days before the Final Fairness Hearing.
16.
The costs of notice and settlement administration shall be paid as
25 ~ described in Section 4 ofthe Agreement.
26
17.
All proceedings in this Lawsuit are stayed pending final approval of the
27 Settlement, except as may be necessary to implement the Settlement or comply with
28 the terms ofthe Agreement.
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1
18.
Pending final determination of whether the Settlement should be
2 approved, Plaintiffs, all Settlement Class Members and any person or entity allegedly'
3 acting on behalf of Settlement Class Members, either directly, representatively or in
4 any other capacity, are preliminarily enjoined from commencing or prosecuting
5
against the Released Parties any action or proceeding in any court or tribunal
6 asserting any ofthe Released Claims, provided, however, that this injunction will not
7 apply to individual claims of any Settlement Class Members who timely exclude
8 themselves in a manner that complies with Paragraph 12 above. This injunction is
9
necessary to protect and effectuate the Settlement, this Order, and this Court's
10 .flexibility and authority to effectuate this Settlement and to enter judgment when
11
appropriate, and is ordered in aid of this Court's jurisdiction and to protect its
12 judgments pursuant to 28 U.S.C. section 1651(a).
13
19.
This Court reserves the right to adjourn or continue the date of the Final
14 Fairness Hearing without further notice to Settlement Class Members, and retains
15 jurisdiction to consider all further applications arising out of or connected with the
16
Settlement. This Court may approve or modify the Settlement without further notice
17 Ito Settlement Class Members.
18
IT IS SO ORDERED.
19
20 Dated:
21
D AN D.PREGER ON
United States District Court Judge
22
23
24
25
26
27
28
-6[PROPOSED]PRELIMINARY APPROVAL ORDER
LA 51732215
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~
t
LA 51732215
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~
Case
06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 48 of 78 Page ID
#:7280
1
2
3
4
5
6
7
8
9
10
GARY DAVIS, an individual, on behalf
12 situated,
11
13
14
Plaintiff,
v.
15
17
Defendants.
18
19
20
21
22
23
24
25
26
27
28
LA 51732215
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ORDER
Case ':06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 49 of 78 Page ID
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1
Plaintiffs, on their own behalf and on behalf of all similarly situated
2 consumers, submitted to the District Court a Motion for Final Approval of the Class
3
Action Settlement ("Motion") seeking final approval of the Stipulation and
4 Agreement of Settlement (the "Agreement" or the "Settlement"), and the exhibits
5
attached thereto, entered into by and between Plaintiffs and Chase. Chase does not
6 oppose Plaintiffs' Motion.
7
By Order dated
2014, the District Court entered an Order that
8 preliminarily approved the Agreement and conditionally certified the Settlement
9 Class for settlement purposes only (the "Preliminary Approval Order"). Due and
10 adequate notice having been given to the Settlement Class in compliance with the
11
procedures set forth in the Agreement and the Preliminary Approval Order, this
12 Court having considered all papers filed and proceedings had herein, and otherwise
13
being fully informed of the premises and good cause appearing therefore, IT IS
14 ~ HEREBY ORDERED,ADJUDGED,AND DECREED:
15
1.
This Final Approval Order incorporates by reference the definitions in
16 the Agreement, and all terms used herein will have the same meanings as set forth in
17 ~ the Agreement.
18
2.
This Court has jurisdiction over the subject matter of the above-
19 captioned action (the "Lawsuit") and, for purposes of this Settlement only, personal
20 jurisdiction over the Parties and all Settlement Class Members.
21
3.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and
22 consistent with due process, this Court hereby approves the Agreement and finds that
23 the settlement consideration is fair and that said Settlement is, in all respects, fair,
24 reasonable and adequate to the Settlement Class Members, and the Parties are hereby
25 ~ directed to consummate the Settlement in accordance with the terms and provisions
26 ~ ofthe Agreement.
27
28
4.
Pursuant to Federal Rule of Civil Procedure 23(b)(3), this Court hereby
certifies the Settlement Class solely for purposes of effectuating this Settlement.
LA 51732215
#:7282
The Settlement Class is defined as follows:
1
a.
2
All Chase Circuit City Rewards Credit Cardmembers with
California billing addresses who, between May 26, 2004
and [date](inclusive, made a promotional or deferredinterest purchase at ircuit City and who, as a result of
payments or credits being allocated to a regular purchase
balance after the promotional or deferred-rnterest balance,
paid more in finance charges than they would have paid if
the payments or credits had first been applied to the regular
purchase balance.
3
4
5
6
7
b.
8
9
10
Settlement Class Members had the right to exclude themselves by
way of the opt-out procedure set forth in the Preliminary Approval Order. Excluded
from the Settlement Class are those persons who validly and timely requested
exclusion from the Settlement Class by way of the opt-out procedure, as identified in
11
Exhibit 1 hereto (the "Opt-Outs").
12
5.
13
14
15
16
17
18
19
20
21
22
23
that: (a) the Settlement Class Members are so numerous that joinder of all
Settlement Class Members is impracticable;(b) there are questions of law and fact
common to the Settlement Class which predominate over any individual questions;
(c) Plaintiffs' claims are typical of the claims of the Settlement Class;(d) Plaintiffs
and Class Counsel have fairly and adequately represented and protected the interests
of all of the Settlement Class Members; and (e) a class action is superior to other
available methods for the fair and efficient adjudication of the controversy,
considering: (i) the interests of the Settlement Class Members in individually
controlling the prosecution of separate actions; (ii) the desirability or undesirability
of continuing the litigation of these claims in this particular forum; and (iii) the
difficulties likely to be encountered in the management of this class action.
24
6.
25
26
27
28
For purposes of this Settlement only, this Court finds and concludes
This Court finds that the notice provided to Settlement Class Members
was the best notice practicable and fully satisfied the requirements of due process,
the Federal Rules of Civil Procedure, the Class Action Fairness Act of 2005, 28
U.S.C. § 1715, and any other applicable laws, and constituted the best notice
practicable under the circumstances and constituted due and sufficient notice to all
2
LA 51732215
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1
persons entitled thereto. Class Counsel has filed with the Court proofthat notice was
2 provided to Settlement Class Members in compliance with the procedures set forth in
3 the Agreement and the Preliminary Approval Order. Chase's counsel has filed with
4 the Court proof of compliance with the Class Action Fairness Act of2005.
5
7.
This Court has considered and hereby overrules all objections to the
6 Settlement on their merits.
7
8.
This Court hereby dismisses with prejudice on the merits and without
8 costs (except as otherwise provided in the Agreement) the above-captioned action
9 (subject to retention ofjurisdiction to enforce the Settlement).
10
9.
By operation of this Final Approval Order and upon the occurrence of
11 -the Effective Date, Plaintiffs and each Settlement Class Member, their respective
12 heirs, executors, administrators, representatives, agents, attorneys, partners,
13 successors, predecessors-in-interest, assigns and all persons acting for or on their
14 behalf, are deemed to have fully, finally and forever released the Released Parties (as
15
defined below)from all Claims (as defined below).
a.
16
"Released Parties" means Chase, together with its predecessors,
17 successors (including, without limitation, acquirers of all or substantially all of its
18 assets, stock or other ownership interests) and assigns; the past, present, and future,
19 direct and indirect, parents (including but not limited to holding companies and
20 JPMorgan Chase & Co.), subsidiaries and affiliates of any ofthe above; and the past,
21
present and future principals, trustees, partners, claims administrators (including,
22 without limitation, the Settlement Administrator), officers, directors, employees,
23 agents, attorneys, shareholders, advisors, predecessors, successors, assigns,
24 representatives, heirs, executors, and administrators of any ofthe above.
b.
25
"Claim" and "Claims" mean any. and all actual or potential
26 claims, actions, causes of action, suits, counterclaims, cross-claims, third party
27 claims, contentions, allegations, and assertions of wrongdoing, and any demands for
28 any and all debts, obligations, liabilities, damages (whether actual, compensatory,
3
LA 51732215
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1
treble, punitive, exemplary, statutory or otherwise), attorneys' fees, costs, expenses,
2 restitution, disgorgement, injunctive relief, any other type of equitable, legal or
3 statutory relief, any other benefits, or any penalties of any type whatsoever, whether
4 known or unknown, suspected or unsuspected, contingent or non-contingent, or
5
discovered or undiscovered, whether asserted in federal court, state court, arbitration
6
or otherwise, and whether triable before a judge or jury or otherwise, including,
7 without limitation, those that were alleged, or that could have been alleged based on
8 the same or similar facts and circumstances, in the Lawsuit.
c.
9
Without limiting the foregoing, the claims released pursuant to
10 Paragraph 9b (the "Released Claims") specifically .extend to Claims that Settlement
11
Class Members do not know or suspect to exist in their favor as of or prior to the
12 Effective Date.
13
10.
The Parties, and all Settlement Class Members, agree that the releases in
14 Paragraph 9 constitute a waiver of Section 1542 of the California Civil Code and any
15
similar or comparable provisions, rights and benefits conferred by the law of any
16
state or territory of the United States or any jurisdiction, and any principle of
17 common law. Section 1542 ofthe California Civil Code provides:
A GENERAL RELEASE.DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
1g
19
20
21
22
Plaintiffs and each Settlement Class Member understand and acknowledge the
23
significance of these waivers of California Civil Code Section 1542 and/or of any
24
other applicable law relating to limitations on releases. In connection with such
25
waivers and relinquishment, Plaintiffs and each Settlement Class Member
26
acknowledge that they are aware that they may hereafter discover facts in addition to,
27 or different from, those facts which they now know or believe to be true with respect,
28 to the subject matter of the Settlement, but that they release fully, finally and forever
4
LA 51732215
#:7285
1
all Claims, and in furtherance of such intention, the releases will remain in effect
2 notwithstanding the discovery or existence of any such additional or different facts.
3 The Parties acknowledge (and all Settlement Class Members by operation of law are
4 deemed to have acknowledged) that the release of unknown Claims as set forth
5 herein was separately bargained for and was a key element ofthe Settlement.
6
11.
This Final Approval Order, the Preliminary Approval Order, the
7 Agreement, and any act performed or document executed pursuant to or in
8 furtherance thereof:
a.
9
Will not be offered or received against the Released Parties as',
10 evidence of, or be construed as or deemed to be evidence of, any admission or
11
concession by the Released Parties as to the truth or relevance of any fact alleged by
12 Plaintiffs, the existence of any class alleged by Plaintiffs, the propriety of class
13 certification had the Lawsuit been litigated rather than settled, or the validity of any
14 claim that has been or could have been asserted in the Amended Complaint or in any
15
other litigation, or the deficiency of any defense that has been or could have been
16 asserted to the Amended Complaint or in any other litigation, or of any liability,
17 negligence, fault, or wrongdoing ofthe Released Parties;
b.
18
Will not be offered as or received against any of the Released
19 Parties as evidence of, or construed as or deemed to be evidence of, any admission or
20 concession of any liability, negligence, fault or wrongdoing, or in any way referred
21
to for any other reason as against any of the parties to the Agreement, in any other
22 civil, criminal or administrative action or proceeding, other than such proceedings as
23
may be necessary to effectuate the provisions of the Agreement, except that the
24 Released Parties may refer to it to effectuate the liability protection granted them
25 thereunder;
c.
26
Will not be deemed an admission by Chase that it is subject to the
27 jurisdiction of any court;
28
5
LA 51732215
!:06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 54 of 78 Page ID
#:7286
d.
1
Will not be construed against Chase as an admission or'
2 concession that the consideration to be given under the Agreement represents the'
3
4
5
amount which could be or would have been recovered after trial.
12.
The Released Parties may file the Agreement and/or this Final Approval
Order in any action that may be brought against them in order to support a defense or
6 counterclaim based on principles of res judicata, collateral estoppel, release, good
7 faith settlement, judgment bar, reduction, set-off or any other theory of claim
8 preclusion or issue preclusion or similar defense or counterclaim.
9
13.
Settlement Class Members, and any person or entity allegedly acting on
10
behalf of Settlement Class Members, either directly, representatively or in any other
11
capacity, are enjoined from commencing or prosecuting against the Released Parties
12 any action or proceeding in any court or tribunal asserting any of the Released
13
Claims, provided, however, that this injunction will not apply to non-released claims
14
of Opt-Outs.
15
14.
The Court finds that the Parties and their counsel have complied with
16 'each requirement of Rule 11 of the Federal Rules of Civil Procedure as to all
17 proceedings herein.
18
15.
Class Counsel are hereby awarded the sum of $
in
19
attorneys' fees and costs, which sum the Court finds to be fair and reasonable, which
20
will be paid to Class Counsel from the Settlement Fund. The award of attorneys'
21
fees and costs will be allocated among Class Counsel in a fashion which, in the
22 opinion of Class Counsel, fairly compensates Class Counsel for their respective
23
24
25
contributions in the prosecution ofthe Lawsuit.
16.
Plaintiff Gary Davis is hereby awarded $
from the
Settlement Fund. Plaintiff Gene Castillo is hereby awarded $
26 ~ from the Settlement Fund. These service awards are for their time and efforts spent
27 conferring with and assisting Class Counsel to help further the Lawsuit for the
28
benefit ofthe Settlement Class.
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Case ::06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 55 of 78 Page ID
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1
17.
In making the award of attorneys' fees and costs to Class Counsel and
2 service award to Plaintiffs, the Court has considered and found that:
a.
3
The Parties entered into arm's-length discussions regarding
4 attorneys' fees for Class Counsel, including extensive discussions through and with
5 the assistance of a third-party mediator, Hon. Edward A.Infante (Ret.);
b.
6
The Settlement created a benefit with a substantial value to the
7 Settlement Class and numerous Settlement Class Members.
copies of the Postcard Notice were disseminated to
c.
8
objections were tiled against the
9 putative Settlement Class Members.
10 terms ofthe proposed Settlement;
d.
11
Class Counsel conducted the Lawsuit and achieved the Settlement
12 with skill, perseverance and diligent advocacy;
e.
13
The Lawsuit involves complex factual and legal issues and was
14 '~ actively prosecuted over seven years and, in the absence of a settlement, would
15
involve further lengthy proceedings with uncertain resolution of the complex factual
16 ~ and legal issues;
f.
17
Had Class Counsel not achieved the Settlement there would
18 remain a significant risk that the Settlement Class may have recovered less or
19 nothing from the defendant;
20
g.
21
value of over $
22
h.
Class Counsel have devoted over
hours, with a lodestar
to achieve the Settlement; and
The amount of attorneys' fees and costs awarded and the amount
23 ~ of the service award to Plaintiffs are fair and reasonable and consistent with awards
24 in similar cases.
25
18.
Without affecting the finality of this Final Approval Order in any way,
26 this Court retains continuing jurisdiction of all matters relating to the modification,
27 interpretation, administration, implementation, effectuation and enforcement of the
28
Settlement. Class Counsel are to continue in their role to oversee all aspects of the
7
LA 51732215
#:7288
1
Settlement. Upon notice to Class Counsel, Chase may seek from this Court, pursuant
2 to 28 U.S.C. § 1651(a), such further orders or process as may be necessary to prevent
3
or forestall the assertion of any ofthe Released Claims in any other forum, or as may I
4 be necessary to protect and effectuate the Settlement and this Final Approval Order.
5
6
19.
If an appeal, writ proceeding or other challenge is filed as to this Final
Approval Order, and if thereafter the Final Approval Order is not ultimately upheld,
7 all orders entered, stipulations made and releases delivered in connection herewith,
8
or in the Agreement or in connection therewith, will be null and void to the extent
9 provided by and in accordance with the Agreement.
10
11
20.
There is no just reason for delay in the entry of this Final Approval
Order and immediate entry by the Clerk ofthe Court is expressly directed pursuant to
12 Rule 54(b) ofthe Federal Rules of Civil Procedure.
13
IT IS SO ORDERED.
14
15
Dated:
.PRE E S N
DEA
16
17
18
19
20
21
22
23
24
25
26
27
28
8
LA 51732215
#:7289
EXHIBIT C
LA 51732215
#:7290
[Front]
Circuit City Rewards Credit
Cardmembers who made promotional or TO
deferred-interest purchases at Circuit
name and address here.]
City may be entitled to payment under a
class action settlement.
THIS NOTICE MAYAFFECT YOUR
LEGAL RIGHTS. PLEASE READ IT
CAREFULLY.
This is an official court notice from the United States
District Court for the Central District of California
[Inside]
You may be entitled to a payment as part of a proposed $5.5 million cash settlement of a class
action if you were or are a Chase or Bank One Circuit City Rewards Credit Cardmember with a
California billing address and you made a promotional or deferred-interest purchase at Circuit
, 2014 and, as a result of payments or credits being
City between May 26, 2004 and
allocated to a regular purchase balance after the promotional or deferred-interest balance, you
paid more in finance charges than you would have paid if the payments or credits had first been
applied to the regular purchase balance.
The class action lawsuit alleged that Chase, and before it, Bank One, improperly allocated
payments or credits on Circuit City Rewards Credit Cards. No court has decided which side was
right and Chase and Bank One deny that they did anything wrong. Both sides agreed to the
Settlement to resolve the case and provide reliefto Settlement Class.
If you wish to remain a part of the Settlement Class and are entitled to a payment, you do not
have to do anything, as a check will automatically be mailed to you after the Settlement becomes
Final
If you want to exclude yourself from the Settlement, you must send a written request specifically
,
Litigation Settlement Administrator, P.O. Box
stating that you request exclusion to
, 2014. If you do not opt out, you will be
CITY, ST ZIP postmarked no later than
bound by this Settlement.
If you remain a Settlement Class Member, you may object to the Settlement by writing to the
, 2014. Full details on how to object
Court and sending copies to counsel no later than
.com.
or exclude yourself can be found at www.
The Court will hold a hearing at the United States District Court, Central District of California,
, 2014 at 10:00 a.m. to
Courtroom #3, 312 Spring Street, Los Angeles, California 90012 on
LA 51732215
#:7291
consider whether to approve the settlement and award attorneys' fees, costs and service awards
as requested, in an amount not to exceed $1,510,000. You or your lawyer may ask to appear and
speak at your own expense, but you do not have to. For further and more detailed information
about this settlement and your rights, please review the Long-Form Notice available at
,
Litigation Settlement Administrator, P.O. Box
.com. Write to
www.
CITY, ST ZIP to request the Long-Form Notice. This Notice is only a summary.
Davis v. Chase Bank USA, N.A.
United States District Courtfor the Central District ofCalifornia, Case No. 2:06-CV-04804-DDP-PJW
1
LA 51732215
#:7292
EXHIBIT D
LA 51732215
#:7293
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND
HEARING TO CHASE CREDIT CARDHOLDERS
This Notice summarizes your rights under the proposed settlement of a class action lawsuit
as described below. You are eligible for payment if you were a Chase or Bank One Circuit
City Rewards Credit Cardholder with a California billing address who between May 26,
2004 and
_,2014 made a promotional or deferred-interest purchase at Circuit City
and who, as a result of payments or credits being allocated first to the promotional or
deferred-interest balance before the regular purchase balance, paid more in finance
charges than you would have paid if the payments or credits had first been applied to the
regular purchase balance.
THIS NOTICE COULD AFFECT YOUR RIGHTS -PLEASE
READ IT CAREFULLY
This Notice is provided to you by order of the United States District Court, Central District of
California. This summarizes a proposed settlement of a class action lawsuit titled Davis v. Chase
Bank USA, N.A., Case No. 2:06-CV-04804-DDP-PJW (the "Lawsuit"). In the Lawsuit, Gary
Davis and Gene Castillo("Plaintiffs") allege that Chase Bank USA, N.A., and before it, Bank
One, Delaware, N.A. (together, "Chase"), improperly allocated payments or credits on Circuit
City Rewards Credit Cards. Plaintiffs make these claims on behalf of all Chase credit card
2014 made a
account holders in California who between May 26, 2004 and
payments or
of
City
and
who,
as
a
result
at
Circuit
promotional or deferred-interest purchase
credits being allocated first to the promotional or deferred-interest balance, before the regular
purchase balance, paid more in finance charges than they would have paid if the payments or
credits had first been applied to the regular purchase balance. Chase vigorously denies the
allegations, and contends that it fully and adequately disclosed the terms of all promotional rate
offers and acted in accordance with its contractual authority.
Who is a Settlement Class Member?
You are a Settlement Class Member if you were or are a Chase or Bank One Circuit City
Rewards Credit Cardholder with a California billing address who made a promotional or
deferred-interest purchase at Circuit City and who, as a result of payments or credits
being allocated first to the promotional or deferred-interest balance, before the regular
purchase balance, paid more in finance charges than you would have paid' if the
payments or credits had first been applied to the regular purchase balance between May
,2014.
26, 2004 and
What are the terms of the proposed Settlement?
The complete terms of the proposed settlement are set forth in a formal Stipulation and
Agreement of Settlement (the "Agreement" or the "Settlement")which is on file with the
Court and is available here [hyperlink]. This Notice is only a summary of the
Agreement, and in case of any conflict or inconsistency between this Notice and the
Agreement, the terms of the Agreement will control. The Agreement, if approved, would
resolve all ofthe claims alleged in the Lawsuit.
LA 51732215
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The Settlement benefits are summarized below.
The Settlement Fund.
Chase has agreed to pay $5,500,000 for the benefit of Settlement Class Members. This
money will be used: (1) to pay the costs of notice and administering the Settlement;
(2)to pay Settlement Class Counsel's attorneys' fees and litigation expenses and to pay
service awards to Plaintiffs; (3) to make payments to Settlement Class Members
(described below); and (4)to pay any residual balance ofthe Settlement Fund, if any, to a
charitable organization or organizations.
Counsel for Plaintiffs and the Settlement Class will ask the Court to award them up to
$1,500,000 in fees and costs and to award the two Plaintiffs service awards of $5,000
each (for a total of $1,510,000 in fees, costs and service awards). The Court will
determine the appropriate amount of the awards to be paid from the Settlement Fund.
The Settlement is not conditioned upon approval of any of the attorneys' fees, costs or
service award amounts. Class Counsel will also file a motion for an award of attorneys'
fees no later than twenty (20) days before the deadline to object, as set forth below. A
copy of the motion can be obtained from the Settlement Administrator, and will be
available on this website when it is filed.
Payment to Settlement Class Members.
If the Settlement is approved by the Court, Settlement Class Members will automatically
receive payment, which will be mailed to them by the Settlement Administrator. There is
no requirement to submit a claim form or take any further action on your part, but please
update the Settlement Administrator, at
,if your address changes.
What Happens Next?
The Court will hold a "Final Fairness Hearing" on
2014, at
at the United
States District Court, Central District of California, 312 Spring Street, Courtroom #3, Los
Angeles, CA 90012, to hear any objections and to consider whether to give final approval
to the Settlement. The Court will only hear objections at the hearing from those who
timely object to the Settlement (see below). You may participate in the Final Fairness
Hearing with or without an attorney, but if you choose to be represented by an attorney
you must do so at your own expense. YOU DO NOT HAVE TO APPEAR AT THE
HEARING TO RECEIVE THE BENEFITS OF THE SETTLEMENT.
What Are Your Options?
Participate in the Settlement.
If you wish to remain a part ofthe Settlement Class and are entitled to a payment, a check
will automatically be mailed to you after the Settlement becomes Final. You must
negotiate any payments within one hundred eighty (180) days ofthe date indicated on the
check. Based on the size of the Settlement Class and the estimated expenses and fees
LA 51732215
#:7295
paid from the Settlement Fund, each Settlement Class Member likely will receive a check
for at least $8.00.
Opt Out of the Settlement.
You may exclude yourself from the Settlement. If you choose to exclude yourself, or
"opt out," you must send a written statement to the Settlement Administrator that
includes: (1) your full name; (2) your address; (3) the last four digits of your Chase
credit card account number(s); (4) a sentence certifying that you are a Settlement Class
Member; and (5) the following statement: "I request to be excluded from the class
settlement in Davis v. Chase Bank, USA, N.A., United States District Court, Central
District of California, Case No. 2:06-CV-04804-DDP-PJW." You must personally sign
your written "opt-out" statement and mail it postmarked by
to the following
address:
[Settlement Administrator]
If you do not opt out, you will be bound by this Settlement.
Obiect to the Settlement.
You may remain a Settlement Class Member, but object to the terms of the Settlement.
You may object to all or any portion of the Settlement at the Final Fairness Hearing, but
you must first explain your objections in writing. All objections must include: (i) your
name, address and telephone number;(ii) the last four digits of your Circuit City Rewards
Credit Card account number(s); (iii) a sentence certifying you are a Settlement Class
Member; (iv) the factual basis and legal grounds for the objection to the Settlement;
(v)the identity of witnesses whom you may call to testify at the Final Fairness Hearing;
(vi) copies of exhibits you may seek to offer into evidence at the Final Fairness Hearing;
(vii) a sentence certifying that you have not been promised anything in return for
objecting; and (viii) your personal signature. To be considered, objections must be:
;and
(1) mailed to the lawyers handling the case for each side postmarked by
(2)filed with the court no later than
.The three addresses are:
Counsel for Plaintiff:
Drew Pomerance, Esq.
Roxborough, Pomerance, Nye &
Adreani, LLP
5820 Canoga Avenue
Woodland Hills CA 91367-6549
Counsel for Chase:
Julia B. Strickland, Esq.
Stephen J. Newman,Esq.
Stroock & Stroock & Lavan LLP
2029 Century Park East
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LA 51732215
#:7296
The Court:
Clerk, United States District Court
Central District of California
312 Spring Street, Courtroom 3
You have the right to consult with your own attorney, at your own expense, before
deciding how best to proceed.
What claims will be released by this Settlement?
If the Settlement receives final approval from the Court, the Settlement will be legally
binding on all Settlement Class Members, including Settlement Class Members who
obiect. This means that, you will be barred from pursuing the claims released by the
Settlement unless you validly "opt out" as described above. The full terms of the release,
which will bind all Settlement Class Members as to certain claims against Chase and
certain affiliates and related entities, are set forth in the Agreement which is on file with
the Court and available here [hyperlink]. The Release provides that as of the Effective
Date, Plaintiffs and each Settlement Class Member, their respective heirs, executors,
administrators, representatives, agents, attorneys, partners, successors, predecessors-ininterest, assigns and all persons acting for or on their behalf, will be deemed to have
fully, finally and forever released the Released Parties from all Claims, as described in
Section 2.10 of the Agreement. Without limiting the foregoing, the Claims released
specifically extend to Claims that Settlement Class Members do not know or suspect to
exist in their favor as of or prior to the Effective Date.
The Release constitutes a waiver of Section 1542 of the California Civil Code and any
similar or comparable provisions, rights and benefits conferred by the law of any state or
territory of the United States or any jurisdiction, and any principle of common law.
Section 1542 ofthe California Civil Code provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
Plaintiffs and each Settlement Class Member are deemed to understand and acknowledge
the significance of these waivers of California Civil Code Section 1542 and/or of any
other applicable law relating to limitations on releases. In connection with such waivers
and .relinquishment, Plaintiffs and each Settlement Class Member are deemed to have
acknowledged that they are aware that they may hereafter discover facts in addition to, or
different from, those facts which they now know or believe to be true with respect to the
subject matter ofthe Settlement, but that they release fully, finally and forever all Claims,
and in furtherance of such intention, the Release will remain in effect notwithstanding the
discovery or existence of any such additional or different facts. The Parties acknowledge
(and all Settlement Class Members by operation of law will be deemed to have
LA 51732215
#:7297
acknowledged) that the release of unknown Claims as set forth herein was separately
bargained for and was a key element ofthe Settlement.
In summary, you will release all Claims that were alleged (or that could have been
alleged based on the same or similar facts and circumstances, whether known or
unknown) in the Lawsuit. YOU WILL NOT BE PERMITTED TO FILE OR
CONTINUE ANY LAWSUIT CHALLENGING ALLOCATION OF PAYMENTS ON
CIRCUIT CITY REWARDS CREDIT CARD ACCOUNT BALANCES.
More Information Is Available.
This Notice is only a summary of the Settlement, which is embodied by the terms of the
Agreement. If you have questions regarding the Settlement, contact the Settlement
Administrator at:
[address/phone/email]
You may also review the Court's file during regular court hours at:
U.S. District Court, Central District of California
312 Spring Street
PLEASE DO NOT TELEPHONE THE COURT, THE JUDGE, OR THE CLERK OF
THE COURT.
U.S. District Court, Central District of California
312 Spring Street
PLEASE DO NOT TELEPHONE THE COURT, THE JUDGE, OR THE CLERK
OF THE COURT.
Dated:
,2014
By Order ofthe United States District Court, Central District of California.
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LA 51732215
Case
06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 67 of 78 Page ID
#:7299
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GARY DAMS,an individual, on behalf
12 situated,
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[PROPOSED]JUDGMENT
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Plaintiff,
v.
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Defendants.
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LA 51732215
ase 2:06-cv-04804-DDP-PJW Document 332-1 Filed 04/23/14 Page 68 of 78 Page ID
#:7300
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Judgment is hereby entered pursuant to the terms of the Final Approval
2 Order.
IT IS SO ORDERED.
3
4 Dated:
ER
DE
D.P
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-1LA 51732215

Stipulation and Agreement of Settlement

Transcription

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